eLex October 2021

Table of Contents

NewsSubstantive LawLegislation
In the NewsAdministrative LawFederal
Court Notices &
Practice Directions
Civil LitigationProvincial
Discipline DigestsConstitutional Law 
New Library ResourcesCriminal Law 
 Book ReviewsFamily Law 
 Wills, Trusts & Estates 

News


In the News

The Open Court Principle and Privacy: A New Frontier? Case comment on Sherman Estate v. Donovan2021 SCC 25. When do exceptional circumstances justify restriction on the open courts principle. 

Events

Understanding legal project management

In this 60 minute webinar, our speakers will focus on the key drivers and trends in legal project management.

In the webinar, our speakers will consider:
– Best practices for LPM to better manage client portfolios and matters.
– Examples of practice areas where LPM is being applied successfully (i.e. complex litigation, transactions).
– How does having an LPM function add value to clients and help law firms gain competitive advantage?

Law and Disability in Canada

Professors Ruby Dhand and David Ireland, two of the authors of ‘Law and Disability in Canada: Cases and Materials’, available now on the LexisNexis Canada Bookstore, will be presenting a live interactive webinar discussing selected topics from their book including access to justice for people with mental health disabilities and addiction, and disability in the criminal justice system.

A General Overview of Overview of Various Insolvency and Restructuring Options for Small and Medium Sized Businesses

DATE: Tuesday, October 26, 2021
Time:  12:00 Noon – 1:30pm
Location: Zoom Video Conference
TOPIC: A general overview of various insolvency and restructuring options for small and medium sized businesses
SPEAKERS: Rick Schwartz, Partner, Tapper Cuddy LLP
Ross McFadyen, Partner, Thompson Dorfman Sweatman LLP 
John Fritz, trustee, Deloitte


Court Notices & Practice Directions

All COVID-19 Notices and Practice Directions are available here.

Federal Court

Notice To The Parties And The Profession

Court of Appeal

Notices

Court of Queen’s Bench

Notices

Provincial Court

Notices


Discipline Digests

Discipline Decision – BADOHAL, Chaman

New Library Resources

New in Print

The 2022 Annotated Tremeear’s Criminal Code

New in the 2022 edition:
The 2022 Annotated Tremeear’s Criminal Code features all the latest legislative amendments, including those introduced by the following:

  • An Act to amend the Criminal Code (medical assistance in dying), S.C. 2021, c. 2 (former Bill C-7)
  • The Canada – United States – Mexico Agreement Implementation Act, S.C. 2020, c. 1 (former Bill C-4)
  • Canada Regulation 2021-44 – amending the Controlled Drugs and Substances Act

Martin’s Annual Criminal Code, 2022 Edition

Whats New in this edition:

  • Ahmad v. R., 2020 SCC 11 – The Supreme Court of Canada held that, where police call a number suspected to be connected to a crime, they cannot offer an opportunity to commit an offence to the person who answers the call without first having formed reasonable suspicion that that person is engaged in criminal activity.
  • Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32 – According to the Supreme Court of Canada, s. 12 of the Charter does not protect corporations from cruel and unusual treatment or punishment.
  • R. v. R.V., 2021 SCC 10 – The Crown may seek to reconcile seemingly inconsistent verdicts, such as a conviction for sexual interference coupled with an acquittal for sexual assault charges involving the same event, by establishing a legal error in the jury instructions that had material bearing on the acquittal and not on the conviction, and by showing that the jury did not indeed find the accused both guilty and not guilty of the same conduct.
  • T.J.M. v. R., 2021 SCC 6 – The Supreme Court of Canada held a superior court justice to have jurisdiction to hear and decide an application for judicial interim release brough by a young person in Youth Criminal Justice Act proceedings – such jurisdiction is held concurrently with the judges of the designated youth court of the province.
  • Zora v. R., 2020 SCC 14 – According to the Supreme Court of Canada, the Crown must prove that the accused had breached a condition of an undertaking, recognizance or order knowingly or recklessly – this offence has a subjective mens rea.

New Online Titles

On vLex
National Security Law. Second Edition

National Security Law — 2nd ed. by Craig Forcese and Leah West

National Security Law, 2e, is about the law governing the Canadian state’s response to serious crises — that is, events that jeopardize its national security. The book approaches national security law as a system, organizing its discussion of law around five themes: structure (the mandate and roles of national security agencies); threats (aggression, terrorism, interference, proliferation, and emergencies); information (domestic and international intelligence collection, sharing, and information secrecy); response (including security screening and assessment, aviation “no fly” listings, passport revocation, immigration detention and removals, peace bonds, preventive detention, threat reduction, defensive and offensive cyber, criminal prosecutions, and use of force); and accountability (national security review).

Given the evolution of Canadian law in these areas, this second edition is a comprehensive rewrite of the first edition, first published in 2007.

Readers may be interested in this primer course on national security law that the authors have created in support of the book.”


Book Reviews

Review taken from the Canadian Law Library Review Volume 46, No. 2.

Managing Privacy in a Connected World. By Éloïse Gratton & Elisa Hendry. Toronto: LexisNexis Canada, 2020. 488p. Includes bibliographic references and index. ISBN 9780433503651 (softcover) $190.00. 

Reviewed by Stef Alexandru

Managing Privacy in a Connected World expertly ties together privacy and emerging practice areas with technologies that are shaping our environment. In recent years, privacy law has developed and extended into new and exciting areas like artificial intelligence, blockchain, the Internet of Things, and smart and connected devices. Although this book has a wide scope in considering a variety of existing and developing legal issues interrelated with privacy, it masterfully captures the essence of each issue.”

Substantive Law


Administrative Law

Cann v. Fort Garry/River Heights (Director), 2021 MBCA 75: Appeal of an order of the Social Services Appeal Board, where the appellant’s benefits were clawed back after he received a payment under the CERB program. Issue is whether the payment should be considered “earned income” or a “liquid asset”. Receivers of income assistance can receive up to $4,000 in the form of liquid assets. Appeal allowed.

Haile v. The Workers Compensation Board of Manitoba et al., 2021 MBQB 192: Application for judicial review of decision denying applicant’s claim for benefits beyond January 11, 2016. Applicant suffered a workplace injury on January 6, 2016 and returned to work January 11. Appeal Commission determined she had materially recovered by the time she returned to work. Standard of review is reasonable; issue is whether the Appeal Commission’s decision that the applicant’s difficulties were not the result of her workplace injury was reasonable. Reminder that the court’s role is to review the Appeal Commission’s reasons not to decide the issue itself. Application dismissed.

Paul Daly. The Shaky Foundations of the Supreme Court of Canada’s Public/Private Divide: Chartier v. Métis Nation, Saskatchewan – 2021 MBQB 142. Administrative Law Matters, published September 8, 2021, viewed September 9, 2021.

“In a series of recent decisions, the Supreme Court of Canada has erected a divide between public and private law. First, judicial review of private organizations was restricted in Wall … , a restriction subsequently extended to judicial enforcement of private organizations’ constitutive documents in Aga …”


Civil Litigation

Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33: Issue of whether the court retains jurisdiction to reconsider publication ban orders after merits of criminal proceedings decided. A publication ban had been placed on an affidavit filed in a criminal matter before the court of appeal pending a decision as to its admissibility as new evidence. CA dismissed the motion for new evidence but ordered that the publication ban remain in effect indefinitely. CBC brought a motion to set aside the publication ban; CA declined to hear the motion citing functus officio.

Per Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.: The Court of Appeal had jurisdiction to consider the CBC’s motion to set aside the publication ban. While the court could not rehear the appeal on the merits and while the doctrine of functus officio precluded it from reconsidering the substance of the appeal, the court retained the authority to supervise access to the record of its own proceeding, which allowed it to ensure compliance with the constitutionally‑protected open court principle and the protection of other important public interests against which it must be weighed.

Per Abella J. (dissenting): The appeals should be dismissed. The CBC is not entitled to reconsideration of the publication ban as a result of its undue and unjustified delay.

Wolfe et al v. Taylor et al, 2021 MBCA 72 : Chambers motion re appeal of dismissal of motion for leave to commence a claim in negligence and breach of fiduciary duty. Liquidator seeks an order for security for costs on the appeal and an order requiring the appellants to pay the costs awarded against them before prosecuting the appeal. Parties have been involved in proceedings since 2017, over sale of two parcels of land to another party. Motion for security order granted; motion for an order to pay the awarded costs dismissed.

Shinoff v. The Province of Manitoba et al, 2021 MBCA 73: Appeal of dismissal of statement of claim by summary judgement. Plaintiff alleged defendants were vicariously liable for the care she received in foster care between 1966 and 1969. Court of Appeal agreed with motion judge in applying K.L.B. v. British Columbia, 2003 SCC 51 (paras 18-17), and following the legislation in place at the time. Court left to another day whether the claims of negligence were statute-barred under The Limitation of Actions Act.

Owen v. Little Grand Rapids First Nation et al, 2021 MBQB 201: Motion by plaintiff to strike statements of defence without leave to amend on the basis that neither discloses a reasonable defence. Issue involves dismissal of councillor by band when band didn’t have the authority to dismiss him. Master Goldenberg finds some parts of the defence must be struck and allows defendants to amend statement.

52000 Manitoba Ltd. and 4472048 Manitoba Ltd. v. 5806497 Manitoba Ltd. et al, 2021 MBQB 194: Motions by plaintiffs for summary judgment re statement of claim against defendant; motion by defendant for summary judgment dismissing the actions; motion for order by plaintiffs striking out a portion of an affidavit. McKelvey, J. dismissed all motions.

[43]      I am not satisfied that a fair and just adjudication is possible on a summary basis.  There are genuine issues requiring a trial which have not been resolved through these proceedings.

Widmer v. Scott, 2021 MBQB 193: Action by lawyer for payment of legal fees. Defendants do not dispute that tasks on the bills were done, they simply refused to pay. Action succeeds for plaintiff under summary judgment, although request for charging order against several properties of the defendants was denied.


Constitutional Law

Richard D. Lindgren. Annotation to: References re Greenhouse Gas Pollution Pricing Act, (2021) 39 C.E.L.R. (4th) 454. (WLNC – request a copy).

The majority opinion of the Court concludes that the “national concern” branch of Parliament’s “peace, order and good government” (POGG) power under s. 91 of the Constitution Act, 18672 provides the constitutional basis of the GGPPA. (2021 SCC 11).

Criminal Law

R. v. K.G.P., 2021 MBCA 79: Appeal by accused of conviction for sexual assault. Victim has significant mental health issues, including a dissociative identity disorder. Accused was aware of her condition. Trial judge rejected accused’s defence of an honest but mistaken belief in consent. Court of Appeal decides there is no basis for appellate intervention. Appeal dismissed.

R. v. Burg and Khan, 2021 MBCA 77: Whether the Crown’s preferring a direct indictment violated the rights of the accused under s.7 or 11(b) of the Charter. Accused basing their position on Jordan. They argue that the direct indictment was for the sole purpose of moving the case from Provincial Court to the Court of Queen’s Bench, thus giving the Crown a longer period of time to prepare for the trial. Appeals dismissed.

R. v. Lariviere, 2021 MBCA 76: Appeal of conviction for sexual assault, making child pornography and extortion. Appeal turns on standard of appellate review in relation to findings of credibility. Only ground of appeal of sufficient merit is submission that the trial judge improperly drew an adverse inference because the accused failed to pursue or call corroborative evidence. Appeal dismissed.

R. v. Onakpoya aka Kerrhs, 2021 MBCA 74: Appeal of motion by accused to quash a direct indictment on a charge of aggravated assault and have proceedings dismissed or remitted back to Provincial Court for a preliminary inquiry. Crown applied to quash the notice of appeal on the basis that this Court has no jurisdiction to hear the appeal because it is from an interlocutory decision. Court agrees with Crown; appeal dismissed.

R. v. R.W., 2021 MBCA 71: Accused seeks leave to appeal and, if granted, appeals sentence imposed following conviction for two counts of sexual interference. Accused asserts trial judge erred in the application of the principle of totality. Standard of review is deferential. Court followed the test set out in R. v. Draper, 2010 MBCA 35 (para 30). Court found that trial judge erred in the application of the principle of totality, but not so much that the sentence was unfit. Leave granted, but appeal dismissed.

R. v. Devos, 2021 MBQB 189: Trial for charges of impaired driving causing death, dangerous driving causing death, and driving over .08. Accused had a graduated licence prohibiting him from driving with any blood alcohol. He drove his truck around a field, it fishtailed and rolled over. Driver was wearing a seatbelt, passenger was not. Passenger died. Discussion of “bolus drinking”. Accused found guilty of impaired driving casuing death, dangerous driving causing death, and not guilty of driving over .08.

R. v. D.A.B., 2021 MBQB 185: Trial of sexual assault causing bodily harm. Accused has a different version of events, and says that the complainant consented. Issues turn on credibility of the parties. Greenberg, J. use the framework of W.(D.) to analyze the evidence. Accused found not guilty.

R. v. Oke, 2021 MBPC 39: Sentencing decision re use of excessive force by RCMP in arrest of Indigenous man. Accused pled guilty. Issue is appropriate sentence for offender and the offence, an assault against a vulnerable person. Analysis of authorities for sentencing a police officer. Thompson, P.J. sentences the accused to a conditional discharge with supervised probation.

Nicole M. Myers and David Ireland. Unpacking Manitoba Bail Practices: Systemic Discrimination, Conditions of Release and the Potential to Reduce the Remand Population. (2021) 69 C.L.Q. 26 (WLNC  – request a copy.)

In Manitoba, 68.9% of the provincial jail population is in pre-trial detention. While Manitoba is not alone in having a pre-trial detention population that exceeds the provincially sentenced population, this is the highest proportion in the country. Using data collected from bail court observations in Manitoba, we examine routine bail practices and the implications of current bail trends.

Paul L. Moreau. “Trouble for Starting Points?”, (2021) 68 C.R. (7th) 129. (WLNC – request a copy.)

In the recent decision of R. v. Friesen, 2020 SCC 9, the Supreme Court of Canada has again grappled with the thorny issue of starting points in sentencing. This has long been a point of friction, particularly with the Alberta Court of Appeal, who has been the leading advocates for this type of appellate guidance since at least 1982.


Family Law

Walshe v. Walshe, 2021 MBQB 197: Reference order for an accounting with respect to disputed assets and liabilities. Parties own a construction business. Dispute over value of business at time of separation. Husband’s net worth statement is not accepted and accuracy of statement wife relies on is questionable. Detailed analysis of how the master arrived at the accounting.

L.L.L. and C.A.L. v. L.M.S. and R.J.M., 2021 MBPC 42: Costs decision over a guardianship application. Respondent, who was successful, takes the position he should have his costs. Applicants believe each party should bear their own costs. Provincial Court rules provide that Queen’s Bench Rules (57.01) are applicable in the Provincial Court (Family Division). Citing Gabb v. Gabb, 2001 MBCA 19, Wiebe, C.J. finds costs award to R.J.M.

M.G. v. The Director of Child and Family Services, 2021 MBPC 40: Application by the Agency compelling police to disclose records relating to an investigation of historic allegations against M.G. prior to him reaching adulthood. M.G. opposes, his right to privacy should take priority over Agency’s interest in his records. M.G. has an upcoming child abuse registry hearing. Parties agree that records held under the YCJA are generally not disclosable. Issues (para. 5): What constitutes the record being sought? How should the records be classified? Are the records disclosable based on how they are classified? Rolston, P.J. finds the records are not disclosable.

Chantal Cattermole and Abigail Choi. Can surrogate have parenting time with child?, The Lawyer’s Daily, Sep. 15, 2021. Case comment on K.B. v. M.S.B., 2021 BCSC 1283.


Wills, Trusts & Estates

McLeod Estate v. Cole et al., 2021 MBCA 80 : Chambers motion by plaintiffs for leave to file a 43-page factum. Court of Appeal rules sets a 30 page limit for a factum although Rule 29(3) provides judicial discretion to deal with factums of an excessive length. Plaintiffs’ notice of appeal notes 17 grounds of appeal. Mainella, J.A. outlines the principles to exercising discretion as to whether to grant leave to file a lengthier factum. Motion dismissed.

Legislation


Federal

Results of the Monday, September 20, 2021, general election will remain unofficial until the Chief Electoral Officer has confirmed the name of the member of Parliament elected in each constituency.

The expected date for the return of the election writs is Monday, October 11, 2021.

Federal justice agenda features bills which died in last Parliament, many Liberal election pledges – Lawyer’s Daily


Provincial

The House adjourned on June 1, 2021.

The 3rd Session of the 42nd Legislature will reconvene on Wednesday, October 6, 2021 at 1:30 p.m.

News Release – Province Announces New Regulations To Support Remote Witnessing And Commissioning Options

“Bill 42, the Remote Witnessing and Commissioning Act, which became law in December 2020, amended the six statutes included in the temporary order and enabled alternatives to physical attendance on a permanent rather than temporary basis.

The new regulations establish processes for the use of videoconferencing as an alternative to in-person attendance when witnessing and commissioning certain legal documents.”

New Library Hours for Lawyers

Lawyers are now able to work in the library after hours. Protective Services will let in lawyers from 4:30 to 10:00 p.m. Monday to Friday, and 10:00 a.m. – 5:00 p.m. on weekends and holidays. Please note that there will be no staff support during those hours.

Coming soon, again … Law Library Hub

In February 2020, just before the start of the pandemic, we started a drop-in program to provide legal information and assistance to members of the public who were struggling with dealing with the courts. While the pandemic put a quick end to the drop-in idea, the need for legal information assistance didn’t dry up with it.

Since February 2021, the Law Library Hub has been operating on a virtual basis by appointment only. As of October 4, 2021, we are thrilled to announce we will be open again to in person service.

Under the supervision of a practising lawyer, law students will be available to provide assistance in the Great Library at the Winnipeg Courthouse on Monday afternoons between 1:00 p.m. to 4:00 p.m. Appointments can be booked using the form available here.

This program is run in partnership with the Law Society of Manitoba, Manitoba Department of Justice, Pro Bono Students Canada, and others, and funded by a grant from the Manitoba Law Foundation. The goal of the project remains the same: to provide information and assistance to members of the public. Representation without legal counsel is difficult and challenging, particularly when trying to follow the rules and procedures that the legal system requires, and puts extra pressure on judges and parties who are represented. Additional assistance for self-represented litigants is important in order to increase fairness and access to justice.  

As part of the pilot project, data will be collected on the types of problems people are encountering and the number of people the Hub assists.

eLex September 2021

Table of Contents

NewsSubstantive LawLegislation
In the NewsAdministrative LawFederal
Court Notices &
Practice Directions
Civil LitigationProvincial
New Library ResourcesCriminal Law 
Book ReviewsFamily Law 
Labour and Employment Law 
 Wills, Trusts & Estates 
  

News


In the News

Events

Legal Research with vLex and Irwin Law Webinar

Tuesday, September 28, 2021, 12:00 p.m.—1:00 p.m.
Irwin Law’s comprehensive Essentials of Canadian Law series is moving from desLibris onto the vLex platform. Learn how to incorporate these texts, vLex and the AI assistant Vincent into your legal research with this free webinar. Eligible for 1 hour of CPD.

Email library@lawsociety.mb.ca to register. You will need to have Zoom installed on your device. Zoom link will be sent the day before the webinar.


Commemorating 150 Years of Treaty 1 and Treaty 2: What You Need to Know

September 17, 2021 , 12:00 noon – 1:15 p.m. Video Webinar
August 2021 marks the 150th anniversaries of the signing of Treaties No. 1 and 2 in Manitoba. In honour of this important milestone, Dr. Niigaanwewidam (Niigaan) Sinclair will discuss the history of the two treaties, the significance of Section 35 of the Constitution Act, 1982 which entrenches treaty rights, and why an understanding of the treaties and the obligations and benefits that flow from them is essential knowledge for all Manitoba lawyers, regardless of your area of practice.

Presenter: Dr. Niigaanwewidam (Niigaan) James Sinclair


Understanding the Dynamics of Domestic Violence for Family Law Practitioners

September 20 @ 8:00 am – September 23 @ 12:00 pm
This training will provide an overview of the dynamics of domestic violence in the context of separation, divorce, and child custody and access. All are welcome to attend. The training will take place over 4 mornings (8 am – 12 pm Saskatchewan time), Monday, September 20 – Thursday, September 23. The training will be held using Zoom.


National Day for Truth and Reconciliation

In June, the federal government announced Sept. 30 as a new annual statutory day to reflect on the history and ongoing trauma caused by residential schools and to honour those who were lost and the survivors, families and communities who continue to grieve.

The National Centre for Truth and Reconciliation is presenting a 5-day national online event of workshops, videos, and activities. Register here or click to see a full schedule.


For a full list of all upcoming events, click here for our Library Events Calendar

Court Notices & Practice Directions

All COVID-19 Notices and Practice Directions are available here.

Court of Queen’s Bench

COVID related notices and directives

Practice directions

Notices

Provincial Court

COVID related notices and directions

Practice Directives

Notices

Court of Appeal

Covid Related notices and directions

Practice Direction


New Library Resources

New in Print

Sentencing — 10th ed. by Clayton Ruby
This book canvasses the law of sentencing in a way that no other books on criminal law and sentencing are able: it succinctly outlines all of the significant facets of sentencing principles and procedure, and provides the reader with a comprehensive range of sentencing for various offences.

Executive Legislation — 3rd ed. by John Mark Keyes
Examines what constitutes executive legislation, considers the constitutional framework for delegating executive legislative authority and the institutional controls on the delegation and exercise of this authority, and considers how executive legislation is made and operates within this context and provides a comparative law perspective ranging not only throughout Canada, but also across comparable Commonwealth jurisdictions.

Bidding and Tendering: What is the Law — 6th ed. By Paul Sandori and William M. Pigott
Helps readers learn from the moves and mistakes of others. This edition not only explains the basic legal principles but also fully updates readers on changes to construction law since publication of the widely referenced fifth edition in 2015.

Misrepresentation and (Dis)Honest Performance in Contract — 2nd ed. by Bruce MacDougall 
A comprehensive, practical guide that offers critical information in an easy-to-use format. Devoted exclusively to the very specific yet crucial area of misrepresentation in contract law and the duty of honest performance.

Drafting Trusts and Will Trusts in Canada — 5th Edition by James Kessler, Fiona Hunter
This book examines both the general and the technical issues that can arise in this area of the law, and deftly combines advice on the substantive law with useful drafting direction from experts in the field.

Canadian Administrative Law — 3rd ed. by Guy Régimbald
This third edition provides an updated look at administrative law in Canada, taking the new case law into account while providing readers with a comprehensive guide to the subject. It is a valuable reference for anyone involved in the practice or study of administrative law.

New Online Titles

From Heinonline

HeinOnline has added several new journal titles from Emerald Publishing to the Law Journal Library collection. This includes full text for all past issues of the journals, excluding the 2 most recent years, which are indexed only

  • International Journal of Law and Management
  • Journal of Financial Crime
  • Journal of International Trade Law and Policy
  • Journal of Property, Planning and Environmental Law
  • Policing: An International Journal of Police Strategies & Management

Book Review

Review taken from the Canadian Law Library Review Volume 46, No. 2.

The Canadian Law of Obligations: Access to Justice
Edited by Hilary Young. Toronto: LexisNexis Canada, 2020. xxx, 255 p. Includes illustrations, bibliographic references, and index. ISBN 9780433505754 (softcover) $130.00.
Review by Emily Nickerson

“…a product of the second biennial Canadian Law of Obligations conference held at the University of New Brunswick in 2019. This conference brought together legal scholars who presented and discussed how the Canadian law of obligations should evolve, particularly in light of the need for greater access to justice.
…this book serves as a timely addition to the existing body of literature covering contracts, torts, and restitution. The papers in this volume invite readers to challenge the status quo and re-examine current assumptions on how traditional problems relating to contracts, torts, property, unjust enrichment, and civil procedure are addressed.”

Substantive Law


Administrative Law

Histed v. Law Society of Manitoba, 2021 MBCA 70: Appeal of conviction by a discipline panel of the respondent concerning four counts of professional misconduct. Appellant contends that the Panel erred in finding his conduct uncivil and constituted professional misconduct. Standard of review is that set out in Housen v. Nikolaisen. Appeal dismissed.

McHale et al. v. Manitoba (Education and Training), 2021 MBQB 190: Reasons comparable to Stone v. Manitoba (Education and Training) below.

Stone v. Manitoba (Education and Training), 2021 MBQB 187: Application for judicial review concerning a complaint dismissed by the Manitoba Human Rights Commission. Complaint concerns discrimination by failing to include materials on gender identity and sexual orientation in the kindergarten to grade 12 curriculum. The Commission investigated the complaint and submitted an investigation report, recommending that the complaint be referred to adjudication. The Commission dismissed the complaint. Kroft, J. finds the Commission’s decision is unreasonable due to insufficient reasons and directs them to reconsider the complaint.

Michele Santarsieri Inc. et al. v. Manitoba (Deputy Minister of Finance), 2021 MBQB 174: Appeal of decision of the Tax Appeals Commission regarding assessments of payroll tax. Applicant claims bias, questions whether there was adequate evidence to make credibility findings, and appeals whether the test under s. 2(4.1) of HPSEA was properly applied. Substantive analysis of judicial consideration of reasonable apprehension of bias. Standard of review for issue of test application is palpable and overriding error. Grammond, J. affirmed the decision of the TAC.


Civil Litigation

Mirage Consulting Ltd. v. 5573344 Manitoba Ltd. et al., 2021 MBQB 186: Defendants’ motions for summary judgment on the grounds that there is no genuine issue requiring a trial. Issue is over interpretation of a restrictive covenant in a consulting agreement. McCawley, J. concluded that the consulting agreement expired, therefore the restrictive covenant did not come into effect. Motion granted.

Fisher River Cree Nation et al. v. Ochekwi-Sipi First Nation Personal Care Home Inc., 2021 MBQB 181: Application for a remedy under s. 234 of The Corporations Act regarding the repeal of a bylaw and passing of a new bylaw. Applicants must establish they have standing and that the conduct of the directors has been oppressive. Judicial consideration of oppression and whether it applies in this instance. Applicants are successful; remedy is to invalidate the second bylaw, and reinstate the initial one.

Private Trading Group, LLC v. The Government of Manitoba et al, 2021 MBQB 180: Motion by defendant Sinclair for an order striking out the amended statement of claim against him. Plaintiff included him in its suit against the government for non-payment of a portion of its contract for the purchase of N95 masks. Plaintiff stated that defendant was acting in his capacity as a public officer as Deputy Minister of Central Services. Standard to have the claim struck is very high. Motion dismissed.

4508841 Manitoba Association Inc. v. Stuart Olson Construction Ltd. et al., 2021 MBQB 179: Application for leave to begin an action pursuant to The Limitation of Actions Act, s.  14(1). The respondents were responsible for constructing a seniors’ housing project in Ste. Anne in 2006. Applicants became aware of all material facts on or about July 21, 2016 and filed an application on June 16, 2017. Respondents opposed application on the basis that the applicant has not proven it has a cause of action with a reasonable chance of success. Application dismissed.

Paterson et al. v. Walker et al., 2021 MBQB 172 : Application for judicial review. Statement of claim was issued in August 2013. Dispute concerns the development of a lot at Falcon Lake; four main issues to be reviewed. Application for review concerns the plaintiffs’ complaints with the defendants’ regulatory decision making. Standard of review is reasonableness as set out in Vavilov. Consideration of The Provincial Parks Act, C.C.S.M. c. P20 and the Parks Activities Regulation, no. 141/96, as well as The Cottager’s Handbook, 3rd ed. Edmond, J. denies plaintiffs’ application to quash the site plan permit; finds the decision to issue a retroactive variance was reasonable; quashes a decision of the province not requiring defendants (Walkers) to comply with a 2018 order; and last order requiring the Walkers to reduce their development footprint by 244 square feet is reasonable. Divided success on the application; costs remain in the cause.

Sarrasin v. Sokal, 2021 MBQB 171: Defendant’s motion to strike statement of claim of plaintiff without leave to amend. Plaintiff filed a claim of the following torts: defamation, malicious prosecution, and workplace harassment. Parties worked together at Canada Post and were active union members. Analysis of Queen’s Bench rule 25.06(1) and 25.11(1). Keyser, J. found that the claim must be struck in its entirety.

Wilde et al. v. The Rural Municipality of Taché et al., 2021 MBQB 166: Application seeking leave for an extension of time to bring an action under The Limitations of Actions Act. Issue is over the design and construction of the applicants’ residence. Contract to build home was signed in 2007 and applicants moved in in 2008. Significant defects were not discovered until 2018. Analysis of s.20(2), (3) and (4) of the LAA. McCawley, J. found that the parties should have known all material facts more than 12 months before seeking leave to being their action. Application dismissed.

Erika Chamberlain. Case Annotation: Caplan v. Atas, (2021) 71 C.C.L.T. (4th) 124). (WLNC – request a copy.) “This remarkable case continues the recent trend in Ontario of recognizing new intentional torts: intrusion on seclusion, public disclosure of private embarrassing facts, and publicity placing the plaintiff in a false light. All of these, but especially the last two, respond to the potential for defendants to inflict serious reputational harm and mental distress on plaintiffs by posting false, misleading, intimate, or humiliating matters on the internet.”

Cindy Kou. Barring New Bids from Contractors Who Have Made Claims Against Municipal Owners, (2021) 8 C.L.R. (5th) 170. (WLNC – request a copy.) “May municipal owners exclude bids from contractors who have previously sued the owners? Would it be unconstitutional or contrary to public policy for a municipality to do so?”


Criminal Law

R. v. Hjorleifson, 2021 MBCA 69: Accused seeks leave to appeal his conviction for one count of assault and one count of uttering threats. Accused and victim were involved in divorce proceedings. Leave to appeal can only be granted on questions of law. Accused raised several grounds of appeal, but only one, inffective assistance of counsel, was a question of law. Appeal allowed on this ground only.

R. v. Letkeman, 2021 MBCA 68: Appeal by Crown of non-custodial sentence given to an RCMP officer for criminal negligence causing bodily harm. Offence was committed while accused was following a vehicle he suspected was being operated by an impaired driver. Passenger in the vehicle suffered severe and lifelong injuries. Court of Appeal found that the trial judge made errors in principle, leading to the imposition of an unfit sentence (para. 58). New sentence includes a three month period of incarceration (stayed). Burnett, J.A., in dissent, would have sentenced the accused to 36 months incarceration (para. 159).

Anderson (Re), 2021 MBPC 38: Inquest under The Fatality Inquiries Act re Kevin Anderson. Death was caused by a train derailment. Mr. Anderson was the conductor. Track collapsed as the train travelled over it due to the wash out of the roadbed surface. Transportation Safety Board report summarized all the facts of the event and made several recommendations. Chief Medical Examiner directed the Chief Judge to call an inquest. Issues are 1) the respective roles of the Inquest Judge and the CME in setting the scope of an inquest; and 2) is the derailment a circumstance in which Mr. Anderson’s death occurred must be further investigated.

R. v. Hooke; Plamandon, 2021 MBPC 34: Sentencing decision re conviction for the interprovincial transport of stolen restricted firearms. Several severe aggravating factors applicable to both accused. Mr. Hooke has some mitigating factors while Mr. Plamandon has very few. Sentencing centers on the moral culpability of the offenders.

R. v. Graham, 2021 MBPC 33: Motion to have charges for a sexual assault stayed due to delay. Charges were laid 10 years ago and accused was not arrested until 2019 despite the RCMP being aware of his location in 2012 and 2014. Accused caused some delay by fleeing Thompson, but the Crown and RCMP are also responsible for some. Total delay from charge to trial is 10 years and 3 months; net delay is over eight years. Cawley, P.J. stayed the charge.

Michelle I. Bertrand, David Ireland, Richard Jochelson and Kathleen Kerr-Donohue. Dispensing Digital Justice: COVID-19, Courts and the Potentially Diminishing Role of Jury Trials. The Annual Review of Interdisciplinary Justice Research, Vol. 10, 2021.


Family Law

G.R.M. et al. v. The Director of Child and Family Services et al., 2021 MBQB 182: Defendants appeal decision of Master dismissing motion to strike out the plaintiffs’ statement of claim on the basis that it is an abuse of process. Appeal from a decision of a master is a fresh hearing. Issue is over apprehension of a child by the defendant. Appeal dismissed.

Chapman v. Russell et al., 2021 MBQB 173 : Application by grandmother for guardianship under The Child and Family Services Act, s.77, as well as interim child support. Child is now 17 and has lived with grandmother for several years. Father lives in B.C. Grandmother’s motion included a request for financial disclosure. Order by MacPhail, J. that father’s income be imputed at $150,000 and that be used to determine his child support obligation pursuant to the B.C. Table.

Smith v. Smith, 2021 MBQB 169: Written reasons of the terms of a Final Order for relief corollary to a divorce that had been previously pronounced. Property issues had been settled. Child custody, support and spousal support to be settled by summary judgment. Analysis of application of current case law to a “parenting order”. Parties reached a settlement on custody issues and relocation via an interim order. Children were apprehended by CFS in Ontario; new order for custody filed by summary judgment. Johnston, J. finds that summary judgment is an appropriate method for a fair and just determination of the matter (para 27).

Barb Cotton and Christine Silverberg. Recent Alberta cases illustrate child support obligations of stepparent. The Lawyer’s Daily, 31 August 2021. Case comment re Friesen v. Friesen, 2020 ABQB 103 and Nyereyegona v. Schofield, 2021 ABQB 662.


Labour and Employment Law

Wardrop v. Ericsson Canada Inc., 2021 MBQB 183: Motion by defendant seeking an order to stay the action in favour of arbitration. Defendant (employer) argues that the parties had an agreement to arbitrate the issue in dispute and thus the court has no jurisdiction. Plaintiff was terminated, given working notice and 78 weeks severance. Issue is whether Sales Incentive Plan payments should be included in his severance. Discussion of the “competence-competence principle” and significant analysis of when the court has discretion to retain jurisdiction and validity of agreement to arbitrate. Rempel, J. grants employer’s motion for a stay of the action commenced by the plaintiff.

People Corporation v. Mansbridge, 2021 MBQB 170: Motion for injunctive relief. Plaintiff seeks an interim, interlocutory and permanent injunction from defendant using plaintiff’s contacts to solicit business. Analysis of the test for granting an interlocutory injunction in the case of restrictive covenants in an employment contract. Harris, J. finds plaintiff has not established a strong prima facie case, as set out in the test in RJR-MacDonald.


Wills, Trusts & Estates

The Estate of William Alfred Kirkup, 2021 MBQB 184: Reference re passing of accounts in case where respondent acted as attorney for deceased prior to his death but there was no power of attorney document. Respondent ordered to account for all money received and disbursed while the deceased was incompetent and incapable of managing his affairs but there are no or very few receipts. Bank statements do not cover the entire period. Sr. Master Clearwater is unable to determine a reasonable opening inventory for the estate or a reasonable closing inventory. Parties agree on some expenses and others are excluded. C. David Freedman. Conflicts when Acting as Trustee and Lawyer. 40 Est. Tr. & Pensions J. 347. (Request a copy.)

Legislation


Federal

August 15, 2021

Her Excellency the Governor General, at the recommendation of the Prime Minister, issued a proclamation to dissolve the 43rd Parliament.
For more information, please consult the section entitled “Dissolution” in Our Procedure.

The general election will be held on Monday, September 20, 2021.


Provincial

The House adjourned on June 1, 2021.

The 3rd Session of the 42nd Legislature will reconvene on Wednesday, October 6, 2021 at 1:30 p.m.


Locating Hard-to-Find Sentencing Decisions

Guest post by Melanie R. Bueckert, Legal Research Counsel – Manitoba Court of Appeal

Rangefindr is another one of the excellent research resources available to members of the Law Society of Manitoba through the Member Portal

Rangefindr logo

While Rangefindr is extremely helpful for all kinds of criminal sentencing research, it is particularly useful when trying to locate cases that do not lend themselves to keyword searching.  For instance, imagine trying to find cases where a lawyer or a police officer is the accused person.  It would be very difficult to construct a keyword search to locate only those cases, without bringing up irrelevant results that also involved lawyers or police officers in other capacities.  Using Rangefindr, such cases can be identified with just a few clicks.

Instead of using Google-style keyword searching, Rangefindr is a filtering service.  To find cases where lawyers were sentenced, one can simply click on the “Accused” category at the top left-hand side of the Rangefindr query page. 

rangefindr accused filter

Scrolling down through the alphabetical list of filters (also called “tags”), clicking “Lawyer” reveals 63 cases in the Rangefindr database.  As soon as the filter is applied, the dispositions in the 63 cases are displayed on the right-hand side of the screen.  Apparently the 63 cases involved 4 absolute discharges, 3 conditional discharges, 10 conditional sentences, 2 intermittent sentences, 2 fines, 2 periods of probation and 40 imprisonments.

table of sentencing decisions

  By clicking “Show Durations”, the display on the right toggles to show a breakdown of the 40 prison sentences.  Clicking “View Cases” brings up the results page, which defaults to showing all 63 cases in reverse chronological order. 

table of imprisonment duration

The cases can also be sorted by “Highest Punishment”, “Lowest Punishment”, “Judge” and “Level of Court”. 

sorting options

Clicking “Tags Associated with this Case” expands the brief case summary to show all of the filters that are associated with the case. 

tags associated with case

Jurisdictional filters can be added by clicking “Edit Search” and choosing the desired jurisdiction(s) under the “Jurisdiction” category on the left-hand side of the screen.  Apparently there are 8 such cases from Manitoba in Rangefindr’s database.

jurisdiction options

  Rangefindr provides links to all of the case results in CanLII (which is where it draws its data from).  These links can be accessed for individual cases by clicking on “Download This Case” in the top-right corner.

Though the Rangefindr database is limited in scope (it generally includes appellate cases since 2000 and trial decisions from 2010 onward), it can help researchers quickly identify pertinent cases, particularly when they involve unique factual elements.  In case you are wondering, Rangefindr’s filters are applied by human editors who go through a rigorous training process. 

To learn more about using Rangefindr, check out the short video available at https://app.rangefindr.ca/help or their Getting Started guide.  For additional Rangefindr search tips, see https://tips.slaw.ca/2017/research/rangefindr-youre-doing-it-wrong/